The following is a rebuttal to the BattleNet FAQ, located at the following address.

http://www.battle.net/support/emulationfaq.shtml

The original question is in bold, with Blizzards response framed, and my responses below.

Tim Neu, tneu@visi.com

3/3/02 – Updated to clarify a few points, and incorporate feedback.

Why is Blizzard trying to shut down servers that emulate Battle.net?


Servers that emulate Battle.net facilitate software piracy of Blizzard products by circumventing Blizzard's authentication code. Blizzard products are intellectual property, and we are well within our legal rights to protect our products from software piracy.



We, in the United States live in a free market. That means we depend on competition between different businesses and individuals to keep a thriving economy. The fact of the matter is that Blizzard doesn't want the competition. Although it is normally for the courts to decide, the server emulation software in question is perfectly legal, provided that it was created using reverse engineering.

Also, just because blizzard has the right to protect their products from copyright infringement, does not mean they have the right to fabricate DMCA violations to save themselves from the inconvenience of an actual trial. If any violation has taken place, it would be a contract violation with regard to the license agreement, not a DMCA violation. The DMCA does not deal with copyright infringement, only with distributing circumvention devices. Even with the broadest possible interpretation of the DMCA, applying it to this situation is quite a stretch.

One could argue that the license agreement prohibiting of reverse engineering would cause this action to be illegal, however, this is not the interpretation of many US courts. For example, a recent court case (Softman v Adobe) affirmed that software was, despite claims to the contrary by software manufacturers, a sale and not a license. This common sense thinking – that once you buy something you are free to take it apart – is rarely ever challenged except in the software market.

The circumvention in question here is dubious as well. It seems the only circumvention the authors are guilty of is existing outside of Blizzard's control.

Even if Blizzard's actions are within the law, it begs the question: How far are software manufacturers allowed to go to protect their programs from perceived piracy? Also, how can our marketplace correct itself when companies like Blizzard squash competition in the name of “piracy”? The authors of these emulation programs are guilty of competing with Blizzard, nothing more. Unfortunately, the US Digital Millennium Copyright Act places a large part of the burden on the “little guy”. Unless someone has the resources to defend these emulation authors, their innovations may be lost, or, more likely, innovation will be pushed overseas.

How do CD keys help reduce piracy?


Blizzard uses two main methods to combat piracy: disc-based copy protection and CD keys. As part of the login process, Battle.net authenticates the user's CD key and prevents people from logging in with the same key or an invalid key.


These precautions are typical of software products, however, they have no legal bearing on the matter. Assuming someone has purchased a copy of the software in question, they are free to use it – even if they choose to access an emulated server rather than the company's own.

For products that haven't been released yet, such as Warcraft 3, a lot depends on the circumstances, however, once again, even assuming Warcraft's license agreement prohibited reverse engineering and was deemed enforceable, that would be a breach of contract NOT a DMCA violation. Blizzard's use of the DMCA here is clearly misuse.

Why doesn't Blizzard provide facilities that enable these emulators to authenticate CD keys through Battle.net?


In order for us to keep our proprietary CD-key algorithms secure, we cannot allow outside servers to query for the validity of CD keys.



Once again, the real reason is that Blizzard does not want the competition. Since Battlenet is provided for free, it may not be immediately obvious how competition would hurt them. Presumably, the more people buying and playing Blizzard games, the better their sales and profits would be. One would think that the existence of bnetd actually would help, as it alleviates some of the problems of congestion and allows other people to pay for the bandwidth of bnetd servers. In actuality, though, the competition in this case is not purely economic in nature. Every user that moves from battlenet to bnetd, effectively reduces Blizzard's control of their user base. It determines which features and/or protections they might be able to do in the future. While Blizzard might like having more control of their users, there is nothing that legally entitles them to it. For this reason, although Blizzard's position can be appreciated, it does not change anything legally.

If Blizzard had wanted to, they could have patented the protocol used by Blizzard's games. In doing so, they would have had to meet certain requirements and fully disclose the protocol. Blizzard decided instead to keep their protocol a trade secret. Trade Secrets such as the Blizzard communication protocol receive NO protection of the law if discovered in a legal manner such as reverse engineering. Nor is there a legal obligation for other companies or individuals to take Blizzard's business model into account when creating compatible products.

What about software that hasn't been released yet? Wouldn't it be better to have as many people testing the beta version of Warcraft III as possible, even if they are playing on non-Battle.net servers?


The primary purposes of the Warcraft III Beta are to get play-balance feedback and to test our Battle.net servers. Our servers aren't tested if people are playing the Beta on rogue servers. Additionally, the Warcraft III Beta is not intended to be a product demo; when testing ends, we need the ability to terminate the Beta's functionality. Rogue servers eliminate our ability to expire beta versions of our products.



This may be Blizzards plan, or business model. That, however, has no legal bearing on the matter. These “Rogue servers” are nothing more than a competing, compatible product. It is not the developers fault if their efforts are not in line with Blizzards business model. No company – not even Blizzard - is guaranteed by law to succeed.

What about the hobbyists who are not pirating your software but just want to use these servers as an alternative to Battle.net?


Unfortunately, software pirates have spoiled this situation for hobbyists. We are constantly working to improve Battle.net, and we sincerely hope that one day, no one will see any reason to seek alternatives to Battle.net for playing Blizzard games.



This statement is interesting, because no software copyright infringement (or “piracy”) is even alleged! It seems this is an attempt by Blizzard to avoid answering a perfectly reasonable question. Their argument is not very convincing when you consider that the bnetd development team offered to support the CD-key authentication, only to have Blizzard refuse to cooperate. .

Assuming that someday Blizzard does manage to improve Battle.net to perfection, that still doesn't change a whole lot. Individuals do now and should in the future remain legally capable of making their own system if they want to.

Your games sell millions of copies. Why do you care if a few people pirate your software?


The sales success of a product should not exclude it from laws intended to protect intellectual property. Software piracy needs to be combated at all levels, and at Blizzard we intend to do our part to fight illegal distribution of copyrighted media.



Blizzard has rather missed the point. Throughout their FAQ, they talk about piracy and copyright infringement, however, as of yet, no piracy or copyright infringement is even alleged in this case. Also, if it were, there are copyright laws in the United States that could be used to prosecute these actions, had they taken place.

Blizzard is instead using the DMCA as a means of crushing this new form of competition. It's real convenient for them. All they have to do is allege some “circumvention” violation, and viola – the web sites of the competition get shut down, allowing them to ignore even the safeguard of judicial oversight.

I think Blizzard would be hard pressed to identify what exactly was circumvented in this case, apart from the mere existence of a competing server software package.

It becomes obvious, looking at cases such as this, that the DMCA is a law ripe for abuse. I would encourage you not to support companies that wield it, and vote with your pocketbook. Even if the US Digital Millennium Copyright Act is not repealed, individuals like us can prevent it from being enforced. Send a clear message – using the DMCA will cause thousands if not millions of users to shop elsewhere. Remember, as customers, we have control.